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TOPIC: APPEARANCE BEFORE TRIBUNALS. Updated 28/10/13

These notes provide information for those who represent claimants at tribunals dealing with Social Security appeals. e.g. ESA, DLA etc. The following notes apply to claimants representing themselves, qualified benefits advisers acting as a representative at an appeal, or to a relative, family friend or carer who although not qualified benefits advisers provide representation at appeal.

1. Introduction

The legislative basis for exercising those functions is regulation 49(8) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999:

You are entitled to have a representative of your choice. Your representative does not have to be legally qualified. He or she could be a friend or relative. But in choosing a representative, you should bear in mind what the role of a tribunal representative is.

A good representative should be able to:

Advise you on what kind of evidence will help you win your case

Obtain that evidence for you or assist you to obtain it

Liaise with the department or council to see if the case can be settled without going to a tribunal hearing

Research the law, including Commissioners & Upper Tribunal decisions

Prepare a written submission for the tribunal summarising your case

Advise you on related matters, including other benefits

Deal with the consequences of the tribunal’s decision, favourable or otherwise.

You are only likely to get such support from a trained representative from a reputable agency. A poor representative can actually damage your prospects of success.

2 These Notes aim to spread good practice as demonstrated by good representatives. They amplify some of the constituents of effective representation listed above. In recommending good practice, I readily acknowledge that representatives operate under pressures of time and finite resources.

3. Evidence

In most appeals, clients will want to gather evidence in support of their case. This can take time and effort, particularly in obtaining medical and other reports. Where it appears unlikely that the evidence will be obtained before the hearing date, it is helpful for the representative to contact the Clerk to the Tribunal to discuss rescheduling the hearing. The later any approach to the clerk is made, the more difficult it will be to reschedule without having to attend the tribunal to request an adjournment.

4. Where the representative has succeeded in obtaining documentary evidence, such as a medical report, in advance of the hearing, that evidence should be copied at the earliest opportunity to the clerk to the tribunal and to the respondent in the appeal (typically the Department for Work and Pensions or local authority).

The clerk will automatically copy any evidence received to the respondent, but it saves time if the representative is able to send a copy direct. There is no advantage in sitting on that evidence till the day of the hearing. If it is strong evidence, it may persuade the respondent to revise its decision in the client’s favour without the need to go to a tribunal hearing.

If representatives choose to hold back documentary evidence in order to hand it to the tribunal at the hearing, they run the risk of the tribunal deciding to adjourn, so that respondent and tribunal may have a fair opportunity to study its contents.

5. Where the evidence takes the form of a report written in reply to a request from the representative, it is good practice for the representative, when submitting the report as evidence, to include a copy of the request as well. This will assist the tribunal in gauging whether the content of the report reflects the independent judgment of its author or simply relays information or opinion of others.

6. Applications for postponement

Where it becomes apparent that the client will not be in a position to proceed on the scheduled hearing date, by reason of illness, unavailability of essential evidence or other good cause, an application may be made to the clerk to the tribunal for a postponement. The application has to be in writing. It should explain the circumstances and, if possible, give an indication when the client might be ready to proceed, so that a new date can be fixed. Where the application is based on illness, it would be helpful to provide details of its nature and restricting effects, so that alternative arrangements might be considered.

Having lodged an application for a postponement, the representative should await confirmation that it has been granted before advising the client that there is no need to attend. For it is possible that the application might be refused and the tribunal might decide to proceed with the hearing on the set date in the client’s absence.

7. Applications for adjournment

An application for a postponement is made to the clerk before the day scheduled for the hearing. An application for an adjournment is made to the tribunal on the day of the hearing. Adjourning delays not only the case in question but also other cases that could have been heard earlier. Representatives should only request adjournments in exceptional circumstances. Tribunals will only grant an adjournment, or adjourn of their own motion, where they are satisfied that the interests of justice so demand.

As in the case of postponements, representatives should not assume that an application for an adjournment will be granted and should be prepared for the tribunal to decide to proceed to deal with the appeal on the day. Where the tribunal does adjourn, it will want to give directions to move the case forward by, for example, identifying further evidence needed and setting a new hearing date. Representatives should be prepared to assist in settling those arrangements.

8.Written submissions

In the majority of cases a written submission lodged on the client’s behalf will have advantages all round. It will serve as a reminder to the tribunal of the key points in the client’s case. By focussing upon the issues actually disputed by the client, it may assist the tribunal in avoiding avenues of questioning that prove inessential. If it is not practicable to send in a written submission in advance of the hearing, it should be handed to the clerk on arrival at the hearing centre. Supplying a written submission does not remove the right of a representative to address the tribunal.

The submission is an appropriate means of drawing to the tribunal’s attention legal authorities (decisions of Commissioners, the Upper Tribunal and the Courts) that the client wishes the tribunal to follow. It can be assumed that tribunals will be able to access full copies of Commissioners decisions that are “Reported” but, where the submission refers to a decision of a court or an unreported Commissioners decision, it is good practice to append a full copy of that decision to the submission. The same applies to Upper Tribunals.

6. Advice to clients

Unfortunately, the level of public awareness of what tribunals do and how they operate is quite low. Although the Tribunal Judge will typically, at the start of the hearing, give an outline of the tribunal’s role, powers and procedure, this can be rather late in the day to absorb information and it is good practice for representatives to try to ensure, in advance of the hearing, that their clients have a fair understanding of what appearing before a tribunal entails. A detailed picture of what will happen is difficult to provide because tribunals will, for example, vary the order of proceedings to fit the requirements of the individual case. But the advice to the client should generally include –

A summary of the tribunal’s role and powers (the power of the tribunal to reduce an existing award may not always be realised) The inquisitorial nature of the proceedings (the tribunal is likely to ask probing questions to test the evidence)

That the conditions of entitlement of some benefits will inevitably take the proceedings into personal and potentially embarrassing areas That, save in exceptional circumstances, the tribunal will want to hear evidence directly from the client rather than through the representative.

Where the representative wants to discuss matters with the client on the day of the hearing, before the hearing actually starts, it is, of course, important to attend in sufficient time to do so.

PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION.Nothing on this board constitutes legal advice - always consult a professional about specific problems

GUIDANCE FOR THOSE WHO APPEAR BEFORE TRIBUNALS.
3 years 3 weeks ago #113425

Updated 28 October 2013. Claimants can no longer following refusal of a social security benefit appeal direct to an Independent Tribunal. They must first ask for Mandatory Reconsideration

Any questions on Mandatory Reconsideration see the guide in the 'Members Only' area.

If any further queries, post in the forum and we'll do our best to explain.

PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION.Nothing on this board constitutes legal advice - always consult a professional about specific problems